Business Learning Resources

Remediation, Grievance Mechanisms and the Corporate Responsibility to Respect Human Rights

Summary

In the Guiding Principles, the term remediation is used to refer to the process or act of providing remedy. It should not be confused with “remediation” in the context of social audits, where the concept includes (and typically focuses on) forward-looking actions to prevent a non-compliance from recurring. 

At its core, the concept of remedy aims to restore individuals or groups that have been harmed – in this case by a business’s activities – to the situation they would have been in had the impact not occurred. Where this is not possible, it can involve compensation or other forms of remedy.

As the Guiding Principles set out, “remedy” in the judicial context is understood to include: “apologies, restitution, rehabilitation, financial or non-financial compensation, and punitive sanctions (whether criminal or administrative, such as fines), as well the prevention of harm through, for example, injunctions or guarantees of non-repetition.” These forms of remedy are relevant – or have equivalents in the case of punitive actions – also in the context of non-judicial mechanisms, with the exception of criminal sanctions. 

Understanding the Business Responsibility for Remedy

The Guiding Principles make clear that a company’s responsibility to provide for remedy depends upon its connection to the human rights impact that has occurred: “Where business enterprises identify that they have caused or contributed to adverse impacts, they should provide for or cooperate in their remediation through legitimate processes,” (Guiding Principle 22).

Where the company has neither caused nor contributed to an impact, but the impact is nevertheless linked directly to its operations, products or services, there is no responsibility under the Guiding Principles to provide for or contribute to a remedy. A company may choose to contribute to remedy in these situations for other reasons – humanitarian, commercial, reputational or other – but this is not grounded in their responsibility to respect human rights.

Understanding and assessing the nature of a company’s responsibility with respect to a specific impact can therefore be an important step in determining a company’s responsibility to provide remedy. Few companies have systematic approaches for analyzing the nature of their responsibility. One company representative observed that, “Our incident management systems are primarily designed to see if an impact occurred, but we have no systematic way of analyzing what our role with the impact may have been.”

Mapping the Place of a Grievance Mechanism

Where companies have caused or contributed to an impact, they have a responsibility to provide or contribute to remedy for those who have been harmed. Primarily, the way companies have understood this responsibility is the need to establish grievance mechanisms, through which affected stakeholders can raise and seek redress for impacts that have occurred. 

The internal “ecosystem” for remediation

Internal policies and processes that may already exist and provide a channel for receiving complaints and/or for addressing them include:

  • Whistle-blower / ethics hotlines
  • Employee ombudsman / human resources complaints processes
  • Open Door / Speak up policies
  • Trade Unions / Industrial Relations processes
  • Consumer complaints mechanisms
  • Community facing grievance mechanisms
  • Business-to-Business contract clauses with dispute resolution provisions
  • Code of Conduct requirements for supplier mechanisms
  • Audit processes (and worker interviews)
  • Supply chain hotlines
  • Stakeholder engagement (at the site level and the policy level)

Mapping the internal ecosystem for remediation serves a number of purposes:

  • Increasing internal comfort with the concept
  • Identifying gaps
  • Learning from existing processes
  • Ensuring connectivity: impacts and grievances are channeled to the right people to be addresses, and the business has full visibility into its human rights impacts.

The external “landscape” for remediation 

Just as companies can look at the internal ecosystem as they consider strengthening or augmenting existing remediation processes, they can likewise look at the “external landscape” for remediation in different operational contexts.

States have critical roles to play in ensuring that effective judicial and non-judicial processes are present. They do so through national court systems and statutory and regulatory bodies, such as national human rights institutions, labor dispute bodies, as well as through administrative mechanisms such the National Contact Points (NCPs) of the OECD Guidelines for Multinational Enterprises. Public financial institutions and multi-stakeholder initiatives may also provide accountability mechanisms and grievance processes to enable those affected by their clients’ or members’ business activities to raise concerns and seek redress for impacts. 

Operational-level grievance mechanisms administered or co-administered by companies sit within this landscape – as non-state-based, non-judicial mechanisms, which should be primarily dialogue based in nature. 

Operational-Level Grievance Mechanisms

Operational-level grievance mechanisms are a systematic means of providing remediation processes.

This resource does not seek to provide full treatment of how to make operational-level mechanisms effective. However, some key areas to keep in mind include:

  • Need for effective management system of the grievance mechanism
  • Determining scope for the grievance mechanism
  • Considering how to talk about the grievance mechanism
  • Designing the system with an holistic and integrated, rather than silo’ed, approach
  • Ensuring an escalation process
  • Using the effectiveness criteria (set out in the Guiding Principles)
  • Connecting grievance mechanisms with stakeholder engagement
  • Getting started by knowing where you currently are

Roles and Responsibilities for Remedy in the Value Chain

When impacts occur within a company’s value chain, businesses often find themselves in a “linkage” situation: that is, the company has not caused or contributed to the impact, but the impact is directly linked to the company’s operations products or services.

In such circumstances, businesses should first confirm that it is indeed a situation of linkage, and not contribution. For instance, in the supply chain context, companies can in some instances contribute to impacts that occur at the supplier level, for example, through their purchasing practices or payment terms.

In these circumstances, companies can play an important role in incentivizing those in their value chain to provide effective grievance mechanisms. This is likely to be easier in relation to suppliers than in downstream relationships.

Ways companies incentivize suppliers to establish grievance mechanisms may include:

  • Making expectations of grievance mechanisms clear in contracts or codes of conduct;
  • Including review of grievance mechanisms during assessments;
  • Offering capacity building for suppliers on grievance mechanisms;
  • Providing a recourse mechanism (like a hotline) if local grievance mechanisms are inadequate.

Using Leverage in Business Relationships to Reduce Human Rights Risks

Summary

What is leverage? It is a company’s ability to influence the behavior of others.

The concept of leverage plays a key role for companies in meeting the corporate responsibility to respect human rights. The Commentary to Guiding Principle 19 states that leverage is considered to exist where the company ha the ability to effect change in the wrongful practice of an entity that causes harm

Leverage gets to the heart of what companies can realistically be expected to do in practice when faced with human rights challenges. Even when companies have a dominant or influential commercial position in a business relationship, there are many questions about how to identify and exercise the most effective forms of leverage. At the same time, every company — regardless of size, industry or geography — faces situations in which it does not have, or does not perceive, sufficient leverage to influence the behavior or others. This raises questions about what steps can be taken to create or increase leverage; what steps could have been taken earlier in the relationship to have created leverage; and when and how to consider terminating a business relationship.

Leverage Over Whom, How and for What Purpose?

Companies can ask themselves three questions when they are seeking to build and exercise leverage over an entity:

  1. Over whom am I seeking to exercise leverage?
  2. How could I exercise leverage?
  3. What purpose could different forms of leverage achieve?

1. Over Whom?

What types of business relationships may a company have that would connect it to potential human rights harms? Very often, those types of relationships may be:

  • upstream suppliers;
  • joint venture or other “horizontal” business partners;
  • downstream business customers, clients or end-users;
  • goverments.

For specific examples of ways to exercise leverage over these groups, see page 17 of the resource.

 2. How?

Once a company identifies who it is trying to influence, it can try to systematize its approach for exercise leverage by examining five categories of leverage.

  1. Traditional commercial leverage: leverage that sits within the activities the company routinely undertakes in commercial relationships. Specific means may include:
    1. Contracts;
    2. Audits;
    3. Bidding criteria;
    4. Questionnaires
    5. Incentives (price, volume, long-term business)
  2. Broader business leverage: leverage that a company can exercise on its own but through activities that are not routine or typical in commercial relationships. Specific means may include:
    1. Capacity building;
    2. Presenting a unified voice from each business department;
    3. Referencing international or industry standards;
  3. Leverage together with business partners: leverage created through collective action with other companies in or beyond the same industry. Specific means may include:
    1. Driving shared requirements of suppliers;
    2. Bilateral engagement with peer companies.
  4. Leverage through bilateral engagement: leverage generated through engaging bilaterally and separately with one or more other actors, such as government, business peers, an international organization or a civil society organization. Specific means may include:
    1. Engaging civil society organizations with key information;
    2. Engaging multiple actors who hold different parts of a solution.
  5. Leverage through multistakeholder collaborations: leverage generated through collaborative action, collectively with business peers, governments, international organizations and/or civil society organizations. Specific means may include:
    1. Driving shared requirements of suppliers;
    2. Using convening power to address systemic issues.

For more detail on types of leverage with examples, see page 14 in the resource. The Annex contains multiple examples of how companies have used these different types of leverage with suppliers, governments, joint venture partners and others.

3. For What Purpose?

Leverage is about creating the opportunity to change how people think and behave. In the context of the Guiding Principles, it is about changing the thinking and behavior of key people within a supplier, contractor, business partner, customer, client or government, where their organization’s actions are increasing risks to human rights.

The purposes of using leverage may range from obliging another entity to address the issue, to engaging another entity to discuss the issue, to persuading another entity to address the issue.

Identifying Opportunities for Leverage

Companies may find it helpful to identify moments of traction, where there is a particular opportunity to exercise leverage. These moments may include:

  • Contract negotiation;
  • Licensing agreements/renewal;
  • Setting qualification criteria for bidding processes;
  • Periodic reports on implementation of a service or plan of action;
  • Renewal of service agreements;
  • Points when services or products require maintenance;
  • Disbursement of funds;
  • Monitoring/audit engagements;
  • Provision of technical or advisory assistance;
  • Processes/investigations for addressing complaints.

Building the Skills of Persuasion

In practice, real behavioral change may happen more often through persuasion than through obligation.

The art of persuasion has been studied in the field of dispute resolution, including by Dr. Robert Cialdini, who developed six principles of persuasion based on basic human instincts. These are:

  1. Reciprocity: the tendency to want to return a favor;
  2. Commitment and consistency: the tendency to wish to honor commitments and be true to one’s self-image;
  3. Social proof: the tendency to do things one sees other people doing;
  4. Liking: the tendency to be persuaded by people one likes;
  5. Authority: the tendency to obey authority figures;
  6. Scarcity: the tendency to want something that is in short supply.

See this video to hear Dr. Cialdini explaining these six principles.

Bringing a Human Rights Lens to Stakeholder Engagement

Summary

Stakeholder engagement is foundational to effective implementation of the UN Guiding Principles. Meaningful stakeholder engagement is particularly essential in a business’ efforts to meet its corporate responsibility to respect human rights. An increasing number of companies have sophisticated systems and processes for conducting a wide range of stakeholder engagement activities, and there is a substantial body of guidance around effective stakeholder engagement. 

However, in practice, many human rights impacts can be linked back to challenges related to stakeholder engagement. It appears that more effective stakeholder engagement often could have prevented or mitigated them.

The Guiding Principles reference the importance of consulting with affected stakeholders at several key moments:

  • in identifying and assessing actual and potential human rights impacts;
  • in tracking and reporting on company efforts to prevent and manage those impacts;
  • in designing effective grievance mechanisms and remediation processes.

Affected stakeholders may include:

  • staff (employees and contract workers) and communities directly affected by a company’s operations;
  • more physically remote stakeholders affected through business operations in a company’s supply chain;
  • customers or end-users of a particular product or service who may be even more dispersed, such as in the ICT or financial services sectors.

Companies may also choose to engage at the broader policy level with issue expert stakeholders: individuals whose human rights are not themselves affected by a company’s activities, but who can provide insights into identifying and addressing human rights challenges, and with whom it may be important for companies to communicate about their overall performance on human rights issues. Engaging with issue experts may be helpful to companies, but it is not a replacement for engaging with affected stakeholders.

Key elements for companies to consider when engaging with stakeholders on human rights issues include:

  • Engaging the right stakeholders;
  • Engaging about the right issues;
  • Engaging the right way;
  • Engaging at the right time;
  • Engaging at the policy level;
  • Engaging internally;
  • Engaging neutral parties.